EFF Volleys to Make Jailbreaking Free of “Jail-Time”

As most savvy technology readers know, the Digital Millennium Copyright Act prohibits “circumventing” digital rights management (DRM) and “other technical protection measures” used to protect copyrighted works. While this ban was meant to deter copyright infringement, many corporations have misused the law to chill competition, free speech, and fair use. Every three years, the U.S. Copyright Office convenes a rulemaking session in order to consider granting exemptions to the DMCA’s ban on circumvention to mitigate the harms the law has caused to legitimate, non-infringing uses of copyrighted materials.

The Electronic Frontier Foundation (EFF) is presenting three exemption requests during the 2009 exemption cycle, one of which is of particular interest to that segment of the Apple community who seek to free their iPhones from the perceived draconian management practices of Apple and its partner carriers.
The 15-page exemption request is being filed on behalf of The Wireless Alliance, ReCellular and FlipSwap — three companies that specialize in breathing new life into previously-used cell phones. The two key arguments for the exemption are:

It encourages competition — The rationale here is that using a mobile handset on the network of the customer’s choosing is inherently pro-competitive and does not infringe on any manufacturer/distributor rights. “Jailbreakers” access the device firmware merely to reprogram it to work on a different network, or to utilize a different SIM card, not to copy it or claim ownership of it.

It is better for the environment — The three companies that are making this request either recycle phones or, when possible, unlock them to make them more marketable and put them back into marketplace. Resale is the most environmentally friendly alternative to the problem of handset obsolescence. They make the case that unlocked phones have a greater chance for resale, because they can be sold to more people and the ability to choose a carrier makes them more desirable.

In the end, if this exemption were granted, carriers would still be allowed to lock their handsets, but talented and enterprising consumers could unlock their handsets if it was worth the trouble to do so. These users would continue to pay their monthly service fees under their service contracts, and would be subject to penalties if they terminated their contracts early.

If this exemption is granted (ruling scheduled for October 2009) it would truly open up the iPhone market to carrier- and application-competition since there would no longer be any fear of prosecution. It may even encourage Apple (and others) to re-think their carrier-exclusiveness model and work towards a more open framework for their devices.